Citation Nr: 0521604
Decision Date: 08/10/05 Archive Date: 08/19/05
DOCKET NO. 00-11 573 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for a right knee
disability.
REPRESENTATION
Appellant represented by: Sandra E. Booth, Attorney at
Law
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Linda F. McCain, Counsel
INTRODUCTION
The appellant had active service from May 21, 1971 until June
15, 1971.
Procedural history
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which denied the appellant's request to
reopen a previously denied claim of service connection for a
right knee disability.
In April 2001, the Board reopened the claim and remanded the
issue for additional development.
In March 2003, the Board denied the claim of entitlement to
service connection for a right knee disability on the merits.
The appellant appealed the March 2003 Board decision to the
United States Court of Appeals for Veterans Claims (Court).
In a March 2005 Order, the Court vacated the March 2003 Board
decision and Remanded the matter to the Board for action
consistent with the directives contained in a Joint Motion
for Remand.
In June 2005, the appellant, through his representative,
requested service connection for a left knee condition and a
back condition, both claimed as secondary to the right knee
condition. Obviously, in the absence of a service-connected
right knee disability, a claim for service connection for
other disabilities on a secondary basis appears to be
premature. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In any event, these claims are referred to the RO for
appropriate action.
In July 2000, the appellant testified at a videoconference
hearing which was chaired by a Acting Veterans Law Judge who
is no longer with the Board. Via a July 1, 2005 letter, the
Board inquired as to whether the appellant wished to testify
at another hearing. In a letter dated July 25, 2005, the
appellant's attorney indicated that he did not desire another
hearing.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify the appellant
if further action is required on his part.
REMAND
The Board has determined that further development is
warranted.
The appellant contends that his service medical records are
incomplete. Specifically, in his March 2000 VA Form 9, the
appellant stated that following a fall from an upper bunk at
Fort Lewis, Washington, he was taken to Madigan General
Hospital. On review of the appellant's service medical
records, there is no report of the fall or treatment of his
right knee following the fall from Madigan General Hospital
in evidence. Further, there is no indication that these
records were specifically requested by the RO.
The claimed fall is at the very heart of the appellant's
claim. Under these circumstances, an effort should be made
to secure the claimed service medical record. See Hayre v.
West, 188 F.3d 1327 (Fed. Cir. 1999) [VA's efforts to obtain
service department records shall continue until the records
are obtained or unless it is reasonably certain that such
records do not exist or that further efforts to obtain those
records would be futile].
This matter is REMANDED to the Veterans Benefits
Administration (VBA) for the following actions:
1. VBA should make another attempt to
secure the appellant's service medical
records through official channels, to
include requesting records from Madigan
General Hospital for the period from May
21, 1971 to June 15, 1971. VBA should
document in the claims folder the outcome
of any attempt to secure the such
records.
2. After the development requested above
has been completed to the extent
possible, and after accomplishing any
additional development deemed to be
necessary based on the state of the
record at that time, VBA should again
review the record and adjudicate the
appellant's claim of entitlement to
service connection for a right knee
disability. If the benefit sought on
appeal remains denied, the appellant and
his attorney should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter Board has remanded. See Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§
5109B, 7112).
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).